Wednesday, February 26, 2014

Conservatives who get marriage wrong are, insofar as they do so, no more conservative than is a conservative who supports socialism. Traditional marriage has been the lynchpin of conservative social policy every bit as much as property rights and a free economy are the lynchpin of conservative economic policy.

What would we say to a so-called conservative who whole-heartedly supported Obama's economic policies? We would want to know on what grounds he can do so and still call himself a conservative.

Are the conservatives we now see running with their tails between their legs on the marriage issue to be trusted even on economic policy? What happens when the polls start going against conservatives on, say property rights? Will they bail on that issue too?

I have said it before: Marriage is such a central conservative issue that any conservative who caves on it cannot be trusted on any other issue.

After the Bourne v. Beshear decision striking down a part of Kentucky's Marriage Amendment, David Adams took to the blogosphere (and apparently the radio) to support Justice John Heyburn's decision to disenfranchise the over 1 million Kentucky voters who ratified Kentucky's Marriage Amendment in 2004 that defined marriage as between one man and one woman and allowed Kentucky to determine its own marriage policy by not recognizing marriages that didn't meet this definition performed in other states.

Adams, who has made a name in the state championing economic conservatism, gave up all critical judgment and accepted at face value Heyburn's tortured interpretation of the Constitution the judge employed in striking down the state's ability to refuse recognition to same-sex marriages performed in other states.

U.S. District Judge John Heyburn said that for Kentucky to refuse to recognize same sex marriages performed elsewhere violates the 14th Amendment of the U.S. Constitution. And it does. The 14th amendment forbids states from denying any person equal protection under its laws.

But the whole question is whether defining marriage the way it has been defined throughout history constitutes a violation of equal protection. If the definition of marriage is between a man and a woman, as the testimony of history (and the majority who voted for the Marriage Amendment) would indicate, then same-sex couples are excluded, not by discrimination, but by definition. Homosexuals who want to marry are no more discriminated against by laws that employ a traditional definition of marriage than fathers are discriminated against by not being allowed to classify themselves as mothers, or brothers as sisters, or Whites as Blacks.

We have all kinds of definitions in the law and they all exclude someone from inclusion in some category. Are we going to find all of those laws in violation of the Constitution?

And, of course, if the logic of this decision is followed through on, then we will have to strick down laws against polygamy and incest. Is David Adams for that too?

He says, "Treating people unequally under the law also violates Section 2 of the Kentucky Constitution."

How?

Adams is apparently not aware that that interpretation is based on a whole slough of judicial doctrines the legitimacy of which is doubtful.

"Supporting traditional marriage is still a right," he says, "it's just not something we can resolve with the force of law."

What does David think a legal decision is? A legal decision is nothing if not the exercise of the force of law. Oh, but that's a definition, isn't it? And we apparently don't like those. The question is not whether anyone can define marriage by the force of law, but who is going to do the defining: An unelected judge, or the people of a state?

Decisions like this basically take marriage policy out of the hands of voters and concentrates it in the hands of the least democratic branch of government: the judiciary. To support this exercise of judicial legerdemain is quite a position for someone to take who argues just the opposite on other issues.

I have one question for David Adams: We know what judge Heyburn's interpretation of Section 2 of the Constitution is: that it means that excluding same-sex marriage from the definition of marriage constitutes unequal treatment. What does he think would have been the interpretation of Section 2 by the people who actually wrote the Constitution?

I am glad to see someone standing up for the definition of marriage. It is what it is and cannot be changed, any more than saying that an animal that purrs and catches mice is a rhinoceros. Rush Limbaugh made this same argument several months ago:

I don't think the people who wrote Kentucky's 1850 Constitution, which included Section 2, ever considered same sex marriage but, given the many examples of polygamy in the Bible, perhaps they gave it some thought. Nevertheless, I believe the people who wrote that "Absolute and arbitrary power over the lives of freemen exists nowhere in a republic, not even in the largest majority" had in mind a government that was limited in its ability to direct the lives of its citizens. If there are government-granted benefits for people who choose to live as couples, there must be very compelling reasons to deny those benefits to some people who choose to live as couples. "Because the majority says so" is not so compelling and given the fact that this aspect of the argument is specifically addressed in Section 2 -- "not even in the the largest majority" -- I am confident they would see it like I do. While I see your legal argument as particularly weak, I'm sympathetic to the cultural and religious implications of giving official stamps of approval to relationships viewed as morally problematic. While this is one of the tough parts of freedom, it doesn't mean that we can't work inside the culture but outside the government to continue the fight. I think doing so is exactly what the framers of our Constitution intended.

Your post serves only to expose your ignorance of the law. The logic of this case doesn't require the striking of all classifications, or allowing polygamy or incestuous marriages. Most classifications merely have to have a rational relationship to a conceivable legitimate state interest, so they easily withstand constitutional challenge. But opponents of same-sex marriage have been singularly unable to identify a legitimate state interest served by prohibiting same-sex marriages. That is why judges all over the nation are striking these same-sex marriage bans, as yet another judge did today in Texas. Cudos to David Adams for recognizing reality; true conservatism is no more grounded in homophobia than it is in racism.

You mean Heyburn's opinion? Yes I have. In the latest news, it was reported that Heyburn is going to go ahead and make his initial opinion a final order, meaning that same-sex couples' out-of-state marriages will have to be recognized unless the state moves to obtain a stay from the 6th Circuit or SCOTUS.

You said:"I don't think the people who wrote Kentucky's 1850 Constitution, which included Section 2, ever considered same sex marriage but, given the many examples of polygamy in the Bible, perhaps they gave it some thought. "

So, they gave polygamy (practiced in the OT) some thought and decided to do what? Make it legal? Or did they prohibit it?

Now, given the same opportunity to consider same sex marriage, what do you suppose those same framers would do?

The question is not what the framers believed about any particular moral issue, but the parameters they set for legislating. It seems, according to your example, that they established the commonwealth with the right to legislate definitions of marriage after having considered polygamy as a possibility.

Gays are found throughout history. For the first time ever - finally - they're almost worldwide! Wow! This global gaydom is even foretold in the Bible - predicted by Jesus (see "days of Lot" in Luke 17 and compare with Genesis 19). And the Hebrew prophet Zechariah (14th chapter) says that during the same gay "days" ALL nations will come against Israel and fulfill the "days of Noah" at the same time (see Luke 17 again) - a short time of anti-Jewish genocide found in Zechariah 13:8 when two-thirds of all Jews will die. In other words, when "gay days" have become universal, all hell will break loose! Shockingly, the same "days" will lead to and trigger the "end of days" - and when they begin, human government will quickly wind down in just a few short years. For the first time in history there won't be enough time for anyone to expect to live long enough to be able to attend college, have kids and grand-kids, save for and enjoy retirement, etc. One final thought. The more we see gays "coming out," the sooner Jesus will be "coming down"! (For more, Google or Yahoo "God to Same-Sexers: Hurry Up," "Jesus Never Mentioned Homosexuality. When gays have birthdays...," and "FOR GAYS ONLY: Jesus Predicted...")

The logic of this case doesn't require the striking of all classifications, or allowing polygamy or incestuous marriages. Most classifications merely have to have a rational relationship to a conceivable legitimate state interest, so they easily withstand constitutional challenge. But opponents of same-sex marriage have been singularly unable to identify a legitimate state interest served by prohibiting same-sex marriages.

My whole point has been that what counts as "rational" or as a "legitimate state interest" is ideologically tortured and that as a practical matter what happens is that judges have defined these terms in accordance with their political beliefs.

This is evidenced by the fact that what counts as rational and a legitimate state interest is in perfect accordance with liberal concepts and in conflict with conservative ones.

I'm questioning the terms and your answer is simply to repeat the terms. I would suggest addressing my argument, not just repeating the liberal dogma on this issue.

Sorry, it doesn't work that way. Once the plaintiffs showed that the state uses a discriminatory classification, the state has to show that it is rationally related to a legitimate state purpose. One judge after another all over the country has found there is no such rational basis for denying same-sex couples marriage licenses.

"Plaintiffs have the burden to prove either that there is no conceivable legitimate purpose for the law or that the means chosen to effectuate a legitimate purpose are not rationally related to that purpose."